Saturday, May 9, 1998 Last modified at 4:47 a.m. on Saturday, May 9, 1998

Royal rights

Court rules Houston club infringed on Elvis trademark

HOUSTON (AP) - It's not blue suede but black velvet that was the center of a trademark infringement suit filed by Elvis Presley Enterprises and reversed by the 5th U.S. Circuit Court of Appeals.

The New Orleans-based appeals court ruled Thursday that a Houston nightclub called the Velvet Elvis infringed on a trademark held by Elvis Presley Enterprises with its painting of the late entertainer on black velvet.

The ruling reverses a 1996 district court decision in Houston.

The Presley estate contends the image of Elvis is tarnished by being associated with such a gaudy enterprise.

Among velvet paintings of numerous other luminaries is one showing Mona Lisa exposing her breasts.

The Houston club defended its identity by describing itself as a tacky shrine that parodies big theme restaurants.

"While the court is not sure if Elvis has left the building, it is clear that Elvis left the defendants' ads sometime in 1995."

Vanessa Gilmore

U.S. District Judge

"The bar is not about Elvis Presley. It's satire," explained owner Barry Capece, who also has opened a Velvet Elvis in Dallas.

"We find that a likelihood of confusion exists between EPE's (Elvis Presley Enterprises') marks and the defendant's use of `The Velvet Elvis' mark," the appeals court ruled.

"Therefore, the defendants have infringed EPE's marks. We reverse the district court's judgment."

The ruling awards no damages to Elvis Presley Enterprises but does clear the way for an injunction that could force the bar to stop using its name.

In her ruling about 18 months ago, U.S. District Judge Vanessa Gilmore upheld the claims of the club.

However, she did grant the estate an injunction barring the Velvet Elvis from using Presley's name or likeness in any of its promotions or advertising.

"While the court is not sure if Elvis has left the building, it is clear that Elvis left the defendants' ads sometime in 1995," the judge wrote.

The appeals court took a different view.

"Parody is not a defense to trademark infringement, but rather another factor to be considered," the appeals court said.